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Allowing CUPE lawsuit against sale of Hydro One would open floodgates: government lawyers

CUPE filed the malfeasance suit in December, calling Hydro One a “vital asset” the government has “no mandate” to sell. Lawyer for the Crown contends the government is entitled to sell it.

CUPE is seeking $1.1 million in damages for Premier Kathleen Wynne’s decision to sell up to 60 per cent of the province’s shares in Hydro One to raise about $9 billion to pay down hydro system debt and raise money for transit and other infrastructure projects.
(Rene Johnston / Toronto Star file folder)

Allowing a union lawsuit aimed at halting Ontario’s sale of Hydro One shares to trial would open the floodgates to legal challenges of ‎government policies by everyone, Crown lawyers warned Monday.

A trio of government lawyers appeared in Ontario Superior Court of Justice to argue their motion to have the lawsuit from the Canadian Union of Public Employees dismissed.

“This is a political claim... for political purposes,” Crown counsel Christopher Thompson told Justice P.J. Cavanagh, who reserved his decision after the day-long hearing.

CUPE is seeking $1.1 million in damages for Premier Kathleen Wynne’s decision to sell up to 60 per cent of the province’s shares in Hydro One to raise about $9 billion to pay down hydro system debt and raise money for transit and other infrastructure projects.

The union filed the misfeasance suit in December, calling Hydro One a “vital asset” the government has “no mandate” to sell.

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Acting for the union, lawyer Louis Century argued the government is “proposing a radical extension of Crown immunity” that will not serve citizens well.”

He urged Cavanagh to allow the case to trial so evidence can be presented to back the CUPE claim that the government “knowingly structured” the share sale to reward investors and the Ontario Liberal Party over electricity ratepayers.

Also representing the union, lawyer Steven Shrybman pointed to a Liberal fundraiser held just weeks after the initial public offering of Hydro One shares attended by major players in the investment industry.

“It’s really simple to infer there’s a legitimate question about the motives of the two ministers,” Shrybman said, calling the share sale “part of a fundraising scheme for a political party.”

Ontario’s integrity commissioner has ruled there was no wrongdoing with the fundraisers.

Cavanagh interrupted Shrybman during his submission, asking “Don’t all these points made so far just point to a policy disagreement with the government?”

For the Crown, Thompson told the court that the Wynne administration amended the Electricity Act two years ago to specify that shares could be sold.

“It’s not only within the authority of this statute... it carries out the purpose of the statute,” Thompson said as the Crown spent the morning outlining its case.

He called the lawsuit “an attempt to nullify the Legislature’s clear policy choice,” and said allowing it to proceed would give all citizens “a cause of (legal) action” against the government for laws or policies they oppose.

“We could all sue, and it’s absurd,” Thompson said, accusing CUPE of trying to “dress up” its lawsuit with claims of misfeasance and conflict of interest by Wynne and two cabinet ministers.

The timing of the lawsuit is interesting because the government has already sold off the intended number of shares.

At the Legislature, the NDP and Progressive Conservatives have accused the government of conducting a “fire sale” of Hydro One shares that will lead to higher electricity prices down the road.

Wynne has countered that the Ontario Energy Board sets rates and that the money from Hydro One shares is needed to build transit, reduce gridlock and make Ontario more attractive for business, to aid in job creations.

Polls have shown some 80 per cent of Ontarians are opposed to the sale of a majority of Hydro One’s shares.

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